Boorer v Brisbane City Council
[2016] QIRC 35
•24 March 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Boorer v Brisbane City Council [2016] QIRC 035 |
PARTIES: | Boorer, Warren v Brisbane City Council |
CASE NO: | TD/2015/82 |
PROCEEDING: | Application for Reinstatement |
DELIVERED ON: | 24 March 2016 |
HEARING DATES: | 18 -20 January 2016 |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
| ORDERS | 1. The application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - electrician called out for work in bad weather - fallen electrical wires at Council Depot - applicant said he could not access the site - could also not undertake any electrical work because of risks involved - applicant failed to advise supervisors of actual situation at Depot - electrical damage at site not rectified until workers attended the site two days later - Council alleged breaches of policy by applicant and serious hazard on site negligently left unresolved - application dismissed. |
| CASES: | Industrial Relations Act 1999 |
| APPEARANCES: | Mr K. Watson, Counsel instructed by Moriarty and Associates for the Applicant. |
Decision
Mr Warren Boorer (Mr Boorer/the Applicant) filed an application on 14 July 2015 seeking reinstatement to his former position as an electrician with the Brisbane City Council (the Respondent/Council) arising out of his dismissal effective on 25 June 2015.
Relevant Legislation
This Application is made pursuant to Chapter 3 of the Industrial Relations Act 1999 (the Act).
Section 73 of the Act relevantly provides:
"73 When is a dismissal unfair
(1) A dismissal is unfair if it is -
(a) harsh, unjust or unreasonable; or
(b) for an invalid reason."
Section 77 of the Act provides as follows:
"77 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -
(a) whether the employee was notified of the reason for dismissal; and
(b) whether the dismissal related to -
(i)the operational requirements of the employer's undertaking, establishment or service; or
(ii) the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance
(i)whether the employee had been warned about the conduct, capacity or performance; or
(ii)whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
(d) any other matters the commission considers relevant."
Witnesses
For the Applicant
· Mr Warren Boorer - the applicant;
· Mrs Robyn Boorer - applicant's wife.
For the Council
· Mr Rodney Farrell - Assistant Facilities Manager for the Council;
· Mr Anthony Loweke - Team Leader, Delivery Coordinator for Trade Services for the Council;
· Mr Scott Woods - Senior Facility Manager for the Council;
· Mr Gordon Herbert - Manager of Trade Services for the Council;
· Ms Mica Julien - Executive Manager of Field Services Group, Brisbane Infrastructure, for the Council.
Background
Mr Boorer was employed as an electrician by the Council from 2009 until June 2015.
Mr Boorer's duties included being rostered on-call after hours on weekends to attend to incidents.
Prior disciplinary matters concerning Mr Boorer
The Council made reference to matters relating to Mr Boorer prior to the incident of 31 January 2015.
a.On the 5 April 2012, Mr Boorer had been issued with a final warning for failing to isolate electricity on a barbeque intended for removal "resulting in a near-miss for the landscape contractor and electrical burn damage to a bobcat bucket." The Council says that Mr Boorer acknowledged his failure at that time to act in a safe manner and to follow standard electrical procedures
b.On 17 September 2014, there had been two safety issues involving Mr Boorer for which he had been reminded of his obligations. These instances involved a ladder falling off a Council vehicle under his control and driving a Council vehicle in the Lennon St Depot with the rear door open.
The events of 31 January - 1 February 2015
Mr Boorer was rostered to work on-call on the weekend of 31 January - 1 February 2015.
On 31 January 2015, there was a thunderstorm in southeast Queensland in the late afternoon. The eastern suburbs of Brisbane were affected by this storm.
Mr Boorer was allocated work to perform by the Duty Officer who coordinated maintenance calls in relation to Council property across Brisbane after hours.
Information provided to Mr Boorer by Mr Scott Woods (Duty Officer on that date) was to the effect that power lines had fallen down at the Council's Lota Depot.
When notifying Mr Boorer of the power lines at Lota, Mr Woods had told him he was unsure if the powerlines were down inside of the Lota grounds or outside of it. Mr Woods said he requested that Mr Boorer advise him if the Council needed to call Energex to deal with the outside pole.
According to Mr Woods, Mr Boorer told him he would remove the fuse and that only the aerials needed to be reconnected on Monday 2 February 2015 [T2-13]. At this time, Mr Woods was unaware of the real situation at the Lota Depot.
After acquiring that knowledge, Mr Woods stated that:
"I am surprised that the Applicant states that it was his intention to return to the Lota Depot on Monday morning. This meant leaving the wires in a dangerous state for all of Sunday until his arrival on Monday. I have had instances at work where for example, a plumber cannot complete a job in the dark but turns off the water and then returns to the job in the daylight. From my perspective, even if the Applicant could not effect a repair on the Saturday night, he ought [to have] at the very minimum, made the area safe before returning home. If he had informed me of the existence of fallen wires I would have, at the minimum have directed that the depot be made safe" [Exhibit 13, Paragraph 16].
Mr Boorer arrived at the Lota site and observed that the electric light pole he was looking at with regard to fuses was owned by Energex. The Council owned the aerial cables which went from the pole onto the site.
For the purpose of illuminating the area in which Mr Boorer was looking, he had been supplied with a Dolphin torch. Apart from the headlights on his vehicle and the Dolphin torch, Mr Boorer claimed that he had no other means of lighting the area on that night.
Mr Boorer stated that the Dolphin torch did not project much light because of the height it had to reach for him to assess the fuses. Mr Boorer said he had not attempted to use a telescopic stick because the higher one extended the pole stick, the harder it was to control [T1-15]. He was also concerned that using a telescopic stick could attract lightning.
As Mr Boorer had stated that he could not gain access to the site, reference was made to three locks on the gate to the Lota property. On those locks he said that each should have had a stamp on the bottom which identified the type of lock. Mr Boorer's evidence was that one lock did not have a stamp on the bottom of it. Therefore, Mr Boorer said he did not have the requisite key to open that lock. Mr Boorer said that after the incident, he had been told that he did in fact have the key for the third lock. It was accepted that there were other keys on Mr Boorer's keyring.
Mr Woods denied that Mr Boorer had told him he could not access the site, he said:
"If he had told me he could not gain access, I would not have allowed the remark to pass without asking more questions. I would have wanted to know what the problem was and I would have suggested returning to the site, with bolt cutters if necessary, to make sure that the site could be accessed. Under no circumstances would I have accepted that leaving live wires was an adequate response to the callout request" [Exhibit 13, Paragraph 12].
Mr Boorer said that as he believed that he did not have the correct key, he walked along the left side of the fence to try to see into the property and if there were any lines down.
Mr Boorer had noticed inside the site that there was a bundle of insulated cable which had been dislodged. He estimated that the bundle of cable was approximately 50 to 75 metres long [T1-17]. He believed that the bundle was appropriately insulated and if one were to come into contact with it, they would be protected. He stated that visibility on that evening had been poor and he was unable to see any power lines down across the road.
It later became apparent in a Report instigated by the Council that there was 15 millimetres of the cable bundle uninsulated.
Mr Boorer says that at 8.51pm on that evening he contacted the Duty Manager, Mr Woods and advised him of his inspection. He recalled telling Mr Woods that he was unable to enter the site.
On Sunday 1 February 2015 at 8.59am Mr Boorer said he texted his supervisor, Mr Loweke. He was unsure whether he had said "callout Lota Depot Aerials down" or "call-out Lota Depot wires down".
On Monday 2 February 2015, at 6.22am Mr Boorer said he contacted Mr Loweke and said he intended to go straight to the Lota Depot. He says that his supervisor told him not to do that and that he should attend a Tool Box talk which was routinely held to discuss safety updates and/or general work developments.
Mrs Boorer gave evidence that Mr Boorer had confirmed to her that, after receiving a call on the evening of 31 January 2015 advising him that, "it was Lota Depot and wires down or lines down" and that he was required to go to that location [T1-74].
Mrs Boorer said that when Mr Boorer arrived at home on 31 January 2015 she believed he had advised the Duty Manager that he couldn't gain access to the site and that he would have to return on Monday with a travel tower [T1-75].
Mrs Boorer signed her Statement on 9 January 2016, concerning the telephone conversation she claimed to have heard between Mr Boorer and Mr Woods. The Council queried Mrs Boorer as to the number of telephone calls which her husband would have received at home over a lengthy period of time when listed for call-out and questioned Mrs Boorer's memory as to a particular call to the home on 31 January 2015 which was almost one year after the event.
On 2 February 2015, she recalled that her husband had arisen early (around 5.15am) because he was anxious to get to the Lota Depot. At around 6.15am, before he had left for work, he telephoned Tony Loweke for "directions on the job". She had heard Mr Boorer tell Mr Loweke that he "had to go back to Lota with a travel tower". She then heard her husband say "oh … I completely forgot about the monthly meeting". She then recalled her husband exhaling and saying "ok Tony". She recalled saying to her husband "You're going to be blamed for this".
Mr Loweke said that the first time he had heard of an incident at the Lota Depot was when he received a text message from Mr Boorer with words to the effect "Call out Lota Depot aerials. Callout City Gardens. Call out Carina bus depot" [Exhibit 12, Paragraph 6]. The Council submits that:
"At 8.59am on 1 February 2015, the Applicant texted his supervisor, Mr Loweke, to the effect 'Call out Lota Depot aerials down. Call out City Gardens. Call out Carina bus depot'. Mr Loweke only receives these texts so as to approve the time sheets. He has to know what electricians on-call have been doing. He thought nothing more of the phrase 'aerials down' as he assumed that the Applicant would have made the area safe [and that the Applicant was only reporting the nature of the incident that he attended]" [Respondent Submissions, Paragraph 23].
He, like Mr Woods assumed that Mr Boorer would have made the area "safe" [Exhibit 12, Paragraph 8]. This belief on the part of Messrs Woods and Loweke was based on the fact that Mr Boorer gave no indication to the contrary and that he was a qualified electrician.
Mr Loweke received a call from Mr Boorer on 2 February 2015 at 6.21am. Mr Boorer had asked Mr Loweke whether he was to go to the Lota Depot to repair the cables which had been brought down by the storm. He said he asked Mr Boorer if the site was safe and he had said it was [Exhibit 12, Paragraph 9]. Note: Mr Loweke's later evidence was that he did not recall asking Mr Boorer if the site was safe but had presumed it to be so as he had not been advised otherwise [see paragraph 86]. He said at no time did Mr Boorer say the wires were live and at no time did Mr Boorer raise any objection to attending the Tool Box meeting on Monday 2 February 2015.
Mr Boorer attended the Tool Box meeting which finished at 9.30am. He then returned to the Lota Depot. When he arrived at the Depot he was told that Energex had reinstated the lines to the pole and power had been isolated at the distribution board. He noted that no work should have commenced on the site until a clearance had been given by Energex.
Mr Boorer claims that had he been able to attend the site at 6.30am that morning he could have isolated the power and locked out and tagged the main switch/circuit breaker by 7.00am.
Meeting of 11 May 2015
Mr Boorer was called to attend a meeting on 11 May 2015 where he met Ms Mica Julien, Executive Manager, Field Services Group, Brisbane Infrastructure. He was handed a 'show cause' letter by Ms Julien asking him to explain why his employment should continue [Exhibit WB5]. Mr Boorer had asked for a copy of the Full Investigation Report, but says he was told that he could be given handwritten notes of the interview but that any names would be redacted from the Report.
Mr Boorer sought to obtain a full copy of the Report, but received a redacted copy "in which not only the names had been redacted but, as it turned out, unbeknown to me, certain key recommendations and findings had also been deliberately deleted. It was never explained to me why those decisions were made before I was given the Report" [the Report is Exhibit WB6] [the quote is from Exhibit 1, point 23]. Ms Julien said that Mr Boorer had been given a copy of the Report with parts of the Report redacted where issues discussed were not relevant to him She believed that the redacted version was sufficient to enable him to respond to the "show cause" notification [T2-34].
Mr Boorer responded to the "show cause" correspondence dated 11 May 2015 [Exhibit WB7].
The Report ["Potential Exposure to Life Parts Incident – Investigation" – dated March 2015]
Mr Boorer said he was not advised by the Council that the Report would be utilized to initiate a disciplinary process against him. As a consequence he had not asked for the interview to be recorded nor had he asked for a support person to be present.
Mr Boorer said that notwithstanding that the Report findings showed that there was no "human error" for which any employee was culpable or accountable for under a disciplinary process, he was directed to "show cause" why his employment should continue. The Report in its Executive Summary states that: "as a result of the investigation, GCG believe that no singular causal factor (including human error) significantly contributed to the incident. With this in mind, a number of recommendations are suggested" [Exhibit 3].
The Report also stated that:
"Contributing factors and underlying causes
System Factors
1. Job pre-planning or risk assessment
·Inadequate pre-planning and assessment of the risks by the electrician was a contributor to the incident. The site specific risk assessment form was not completed for the call out.
·The 'TP1' key was reportedly on the key ring, however the electrician made the assumption that he didn't have this key available, without testing all the available keys in the lock.
·The site specific risk assessment form was not completed for the call out.
·The layout and content of the Site Specific risk assessment form (IMSF-21004) has limitations for its application to non-routine tasks.
2. Communication processes
·The undocumented process for the performance of isolated or remote work and on-call communication between the Supervisor/Duty Manager and the Electrician was an underlying cause to the incident.
3. Procedures
·The lack of a procedure for documenting call out responses was a contributor to the incident.
·This would include a process for documenting the call out, through photos, site risk assessment, activity report and actions taken to "make safe".
Environmental Factors
1. Adverse Weather Conditions
·The weather conditions at the time of the initial call and response by the electrician were an underlying cause to the incident.
·It was dark and there were windy conditions that prevented the electrician from attempting to remove the service fuse from the pole by himself without putting himself in danger.
People Factors
1. Supervision
·Inadequate supervision of the electrician by the Duty Manager was a contributor to the incident.
·An ongoing personality conflict (team dysfunction) between the electrician and electrical team leader was obvious, and was considered a contributor to the incident.
2. Hazard recognition/perception
·Poor hazard perception by the electrician was a contributor to the incident. The hazard still existed because the electrical supply was not isolated. The perceived control of the locked gate was not effective when a person entered the depot grounds.
3. Poor communication
·Poor communication between the Duty Manager and the electrician following the call out response was a contributor to the incident.
·Poor communication between the Team Leader and the electrician on the day of the incident, was a contributor to the incident.
Absent/Failed Defences
1. Risk Controls
·The electrician correctly identified the hazard, however his choice of risk control was limited to personnel who could not access the depot site.
2. Supervision
·Scott Woods (On-call Duty Manager) reported that he knew that the worker was working alone, in dark, wet and windy conditions.
·Scott stated he had discussed pulling the service fuse and confirmed the electrician had the necessary equipment to do so. This was not done by the electrician due to the risk.
·When the electrician failed to answer the phone call from the Duty Manager, and did not return the call until 2 hrs later, there was no follow up by the supervisor to locate the electrician and confirm his welfare" [Exhibit 3].
Mr Boorer claimed that there had been a fundamental breach of natural justice in that Ms Julien had considered his response and without further discussion with him commenced an investigation by interviewing third parties who had been provided with a copy of Mr Boorer's response. He had no opportunity to rebut their evidence.
Outcome sought by Mr Boorer
Mr Boorer was seeking reinstatement. He states that in his 45 year career he had never been disciplined for misconduct, professional misconduct or negligence.
Mr Boorer is 61 years of age and has been unable to obtain employment. He is restricted to staying in Brisbane because of his wife's full time employment.
The Show Cause Process - Disciplinary Findings by Council
The Council issued its Show Cause notice to Mr Boorer on 11 May 2015. Basically the notice requested that Mr Boorer provide reasons as to why his employment with the Council should continue in light of his alleged misconduct in relation to his failure to make safe the Lota Council Depot, following a call-out regarding an electrical safety incident.
The correspondence, inter alia, stated that "It appears that you failed to undertake a comprehensive assessment of the situation, seek direction from your duty manager or fulfil your obligations as an experienced tradesperson and Council employee …" and that "I find it unfathomable that an experienced electrical tradesperson would not be aware of the inherent risk that a fallen power line poses and take appropriate steps to ensure the safety of the work site prior to scheduled work commencing. Your failure to fully investigate and rectify the situation resulted in Council officers being put in a situation which may have resulted in injury or death due to the section of the live power lines that was uninsulated" [Exhibit1, WB5].
Reference was made in the notice to the requirements of the Electrical Safety Act 2002, Council's Code of Conduct and Zero Harm Responsibility of Workers.
The relevant excerpts from these documents are listed hereunder:
"Electrical Safety Act 2002
Part 2 Electrical Safety Duties28 What is reasonably practicable in ensuring electrical safety
In this Act, reasonably practicable, in relation to a duty to ensure electrical safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring electrical safety, taking into account and weighing up all relevant matters including-
(a) the likelihood of the hazard or the risk concerned happening; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about-
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
"Code of Conduct
The Second Principle - promoting the public good
(a)Ethics value
In recognition that the public sector is the mechanism through which the elected representatives deliver programs and services for the benefit of the people of Queensland, public sector entities and public officials.
· Accept and value their duty to be responsive to both the requirements of government and to the public interest; and
· Accept and value their duty to manage public resources effectively, efficiently and economically; and
· Value and seek to achieve excellence in service delivery.
The Fourth Principle - Accountability and transparency
(a)Ethics value
In recognition that public trust in public office requires high standards of public administration, public sector entities and public officials.
· Are committed to exercising proper diligence, care and attention; and
· Value and seek to achieve high standards of public administration; and
· Value and seek to innovate and continuously improve performance; and
· Value and seek to operate within a framework of mutual obligation and shared responsibility between public sector entities and public officials.
(b)Standards of conduct
(i)Diligence, care and attention
Council aims to conduct its business with integrity, honesty and fairness, and to achieve the highest standards in service delivery. You contribute to this aim by carrying out your duties honestly, responsibly, in a conscientious manner, and to the best of your ability. This includes:
·Conducting yourself in a way so others gain confidence and trust in the way Council does business;
·Not allowing your conduct to distract or prevent others from working;
·Not exposing Council to a judgement for damages against it, as a result of your negligence or breach of any law or ordinance;
·Ensuring that you carry out your work diligently, accurately and to the required performance standards and timeframes;
·Proactively seeking assistance if you are experiencing difficulties with your work;
·Ensuring your personal conduct does not reflect adversely on Council's reputation.
(iv) Continuing development
You are expected to maintain and improve your work performance and that of your work until in the delivery of customer service. You have a continuing responsibility to maintain and enhance your skills and expertise, and keep up to date the knowledge associated with your area of work. Council will assist you by providing equitable access to training and development opportunities.
(v) Workplace health and safety
We are committed to Zero Harm in the way we conduct our business and Council activities. You must take reasonable steps to ensure your own safety, health and welfare in the workplace. You also have a duty of care to both fellow employees and members of the public. This duty of care extends to both psychological and physical health and wellbeing.
We must all:
·Identify hazards and manage risks to health and safety;
·Perform all work safely and follow safe work practices;
·Use personal protective equipment if required;
·Report any incidents or hazards immediately and support investigations;
·Take corrective action to "make safe" and implement improvements."
"Zero Harm Responsibilities of Workers
1. Comply with the requirements of Council's Zero Harm policy.
2. Adhere to written and verbal instructions issued by the employer relating to health and safety issues (this includes but is not limited to, following safe work practices and Zero Harm signage.)
3. Advise the Line Manager/Team Leader of unsafe conditions or activities in the workplace.
4. Work in a safe manner that will not endanger you or any other person.
5. Report any workplace incidents to your Line Manager/Team Leader.
6. Fulfil Zero Harm performance requirements and behavior expectations as detailed in the Performance Leadership process."
Mr Boorer claims that he had been denied "natural justice and procedural fairness" by the Council in the process that was adopted by it in the course of investigating and determining his employment.
Mr Boorer cited a number of incidents in relation to this claim.
· Possible solutions which may have been considered by Mr Boorer when attempting to enter the Lota site were never put to him by Ms Julien for a response. For example, the attaching of a lockout tag with a cable tie onto the gate at the site;
· That employees at the Lota site had started arriving at work at 6.00am;
· Whether fuse removal could have been carried out in a safe way;
· The allegation that he had not told Mr Woods of his inability to access the site (the relevance of this being that had he known, he would have advised Ms Julien of his wife's corroboration of his phone call);
· That Mr Boorer had been deliberately misleading in his response concerning discussions he had with Mr Woods and Mr Loweke;
· This is relevant because Mr Loweke had been unable to recall whether he had asked Mr Boorer if the site was safe as set out in Exhibit 3. Exhibit 3 [Report for Potential Exposure to Live Parts Incident Investigation March 2015] on page 7 records the following:
"During his interview, Tony Loweke stated that he was under the assumption that the site was "made safe" and no danger existed to workers on site. He did not recall having asked Warren the question "Has the site been made safe?" before requesting that he attend the team meeting."
Mr Boorer says it is not an adequate response to say that even if the opportunity had been provided to him, it would have made no difference.
On 2 February 2015, Mr Boorer said he was very stressed and anxious at having to attend the Tool Box meeting as he had wanted to get back to the Lota Depot as soon as possible "to isolate the supply from inside the depot". The Council submits that this confirms its belief that Mr Boorer was well aware there was a safety risk at the Lota Depot.
With regard to the locked gates at the Lota Depot, Ms Julien claimed, that after inquiry, Mr Boorer did have the relevant keys in his possession. It was submitted that the fact that he failed to properly test the keys shows negligence on his part.
Ms Julien also formed the view that Mr Boorer's failure to leave a note on the gate because it might fly away was incongruous in that any note or attempt to leave some notification of potential danger would have been better than no note at all.
Council said the use of a lockout tag would have at least identified to visitors to the site that there was something amiss on the site.
With regard to the question of how to remove the fuse, Ms Julien had noted that the line to the Lota Depot was the only one from the pole that ran from the depot side of the road and therefore it would have been easy to distinguish it from the lines to the various residences.
As for Mr Boorer's problem with the telescopic pole stick the only relevance of that was that it applied to high voltage work, and that the removal of fuses in this instance was low voltage work.
Ms Julien had found that Mr Boorer had not mentioned to Mr Woods that a power line was down and, since he could not access the site he could not make it safe.
As Mr Woods was not an electrician or electrically trained he was unable to provide electrical advice to Mr Boorer and in any event reliance would logically be placed on Mr Boorer's assessment of the situation.
The text sent by Mr Boorer to Mr Loweke had not mentioned any need for Mr Boorer to return to the site on Monday morning.
While Mr Boorer had stated that "I would have thought that while the depot was locked and no access is allowed, then no contact with the fallen lines would have occurred." Ms Julien rejected this proposition as she believed that Mr Boorer would have been well aware that employees working at the depot would have had keys to access the site. Without any signage outside the depot, on the gate for example, any employee entering the depot would be placed in serious danger.
In summary, in the 'Show Cause' communication to Mr Boorer, Ms Julien stated:
"…
Council has a duty of care and a significant focus on the health and safety of its employees and members of the public. As a Council employee you are expected to carry out your duties with diligence, care and attention and to take reasonable steps to ensure the health and safety of yourself and others. I believe you have demonstrated a repeated lack of respect for your safety obligations as a Council employee and your misconduct calls into question the value you place on your employment with Council. Additionally, as a qualified electrician with over ten years' experience, and considering the dangers associated with live electricity, you have a special responsibility and obligation to ensure electrical safety for yourself, employees and members of the public."
Consideration of the evidence and Conclusion.
Mr Boorer is a qualified electrician and has worked in that trade since 1971. Seven of those years have been spent with the Council.
The events of 31 January 2015 are not in dispute as they go to the fact that Brisbane was experiencing a storm and that Mr Boorer, who was on-call for the Council, was called out to inspect the Council's Lota Depot.
Mr Boorer arrived at the site at 6.54pm, but had not taken his work mobile phone with him. He had his personal mobile but it could carry a charge for about one hour. This clearly was an unsatisfactory situation as employees were under instruction to have their mobile phones on them at all times.
That Mr Boorer did not try to use the other keys on his Council key-ring to attempt to open the gate was negligent, in my view. It ultimately eventuated that he could have opened the lock on the gate by utilizing other keys on the key-ring.
After finding that he could not enter the site, Mr Boorer did not attempt to contact the Duty Officer to see if any assistance could be given to him. It was Mr Boorer's obligation to advise his Duty Manager of this problem.
Mr Boorer then walked along the side fence of the Depot and noticed that there was a bundle of insulated aerial cable which had been pulled to the ground by a broken branch. He believed that the cables were not touching the ground. However, Mr Boorer knew that the power was still on and connected to the cables because security lights were on at the back of the building. The lights were powered by the cables. With this knowledge, I have accepted that Mr Boorer did nothing more to deal with this problem.
Mr Boorer's decision not to attempt to put a note on the gate (even if it would have blown away) was reckless.
Mr Boorer stated that he then thought about removing the service fuse from the Energex pole, but made a decision not to do so because it may be a risk for him to do so. Mr Boorer said he also did not have the right equipment to perform the task. He believed that he would require a travel tower to complete the task safely.
Notwithstanding the options open to him, Mr Boorer chose none of them. While Mr Boorer was more than entitled not to choose a path which would have put him at risk, the fact is that he told no-one from the Council that there were fallen live wires at the site. This was a serious error on his part. It should also be noted that Mr Boorer agrees that he was only on the site for 12 minutes.
Mr Loweke's evidence is also accepted in that after receiving a text from Mr Boorer stating on 1 February 2015 "Call out Lota Depot aerials down…" he presumed that Mr Boorer would have made the area safe.
There is no evidence which shows that Mr Boorer attempted to attend the Lota Depot on 1 February 2015. Mr Boorer said he could have asked to return to the Lota Depot site, but did not do so.
On 6.20am on 2 February 2015, Mr Boorer asked Mr Loweke if he could go out to the Lota Depot to repair the cables. Mr Loweke did not recall asking Mr Boorer if the site was safe at that time and he confirmed in evidence that the first time he had heard of live wires at the Lota site was when he attended the call-centre of the Council at the end of the Tool Box meeting held on 2 February 2016. However, he was adamant that Mr Boorer had not expanded upon his reason for wishing to attend the Lota Depot earlier on that day rather than later. I accept that at no time was Mr Loweke made aware of the actual issue at the Lota Depot.
It appeared that Mr Boorer was unaware of when workers would arrive at the Lota Depot on the morning of 2 February 2015. Had he arrived at the Centre when planned (7.15am), then workers would have commenced work by then in any event. There is no evidence to show if Mr Boorer inquired as to when Council employees might start arriving at the Lota Depot in the morning. His failure to do this was also negligent in my view.
Mr Farrell's evidence was that he had attended at the Lota Depot at around 7.30am. He noticed that there was significant damage to the buildings on the site and that there were dislodged powerlines which had been suspended about half a metre above the ground level. The suspended powerlines were situated within an area which was accessed by Council workers. By this time, Mr Farrell said someone had placed witches hat cones around the areas warning others to stay clear of the area. This highlights the fact that the site was unsafe.
I have accepted that Mr Farrell contacted Mr Woods who advised him that an electrician had attended the site on Saturday night and had made the site electrically safe [Exhibit 11 - point 5].
When Energex arrived at the site, they confirmed that the low lying wires were live.
Mr Farrell stated that "the existence of live power lines created a situation that was potentially dangerous for anyone coming on to the property. The lack of insulation on the wires meant that anyone coming into contact with the uninsulated section would have received an electric shock. There was nothing to alert anyone coming on to the property that the wires were live."
After considering all of the evidence, I find that Mr Boorer did not carry out his duties as an electrician for the Council with the appropriate level of diligence, care and attention required over the period of 31 January 2015 to 2 February 2015. I have preferred the evidence of Mr Woods and Mr Loweke over that of Mr Boorer.
In making this finding, I have also considered the submissions made by Mr Boorer to the effect that the Council had denied him natural justice during the 'show cause' process. The detail of these submissions is contained in paragraph 49.
When considering Mrs Boorer's evidence, I have found that, with the effluxion of time between Mrs Boorer allegedly hearing one side of Mr Boorer's telephone conversation with Mr Woods and the writing of her statement (almost one year later), I have concerns about the accuracy of her evidence, given that on a number of occasions during that year telephone calls were made either to the Boorer's home or from the home when Mr Boorer was on-call. In all, I have been unable to accept Mrs Boorer's recollection of events.
Concerning the matter of general enquiries made by Ms Julien, Mr Boorer says that the later mention by the Council of a range of matters which had formed part of its decision making process, and not identified to him in formulating his response to the "show cause" notice, should be considered by the Commission.
In considering this point, in my view, the primary contention in this matter relates to whether Mr Boorer told his supervisors that the lines were down at the Lota Depot; that they were live and whether he led them to believe/or told them that the site was safe (electrically) so much so that he could return on Monday 2 February 2015 to rectify non urgent issues.
Of significance also was Mr Boorer's submission that Ms Julien conducted her own investigation and in doing so denied Mr Boorer natural justice.
Ms Julien is the Executive Manager for the Field Services Group, Brisbane Infrastructure, with the Council. It can be safely assumed that she is not an electrician. That she made other enquiries within the Council concerning the incident at hand is unsurprising. She required clarification of the processes which should/could have been/or were undertaken by Mr Boorer on 31 January 2016. That the Council did not independently raise the issue of the possibility of his using bolt-cutters or lock out tags on 31 January 2016 is insufficient reason to submit that Mr Boorer was not offered natural justice.
I have not accepted that Mr Boorer was denied natural justice by the Council and that Council's decision should be declared void. Coutts v Close[1] states that natural justice does not require every piece of information to be put to an employee for comment provided they are aware of the essential features of the case against them.
[1] Coutts v Close [2014] FCA 19 at [114 – 120]
In Kioa v West, Brennan J stated inter alia that: "The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance."[2] Also in Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs it was stated that: "It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its 'essential features'."[3]
[2] Kioa v West (1985) 159 CLR 550 at 628-629
[3] Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs [2000] FCA 1113
In my view, Mr Boorer was well aware of the real nature of the claim made against him.
In considering the requirements of Section 77 of the Act I have found that Mr Boorer was notified of the reason for his dismissal [77(a)].
Mr Boorer's dismissal related to Mr Boorer's conduct, capacity and performance and resulted in his dismissal from employment for misconduct [77(b)].
Mr Boorer had been previously warned by the Council concerning his performance, but the nature of this incident warranted dismissal for misconduct [77(c)].
Mr Boorer was given an opportunity to respond to the allegations of the Council [77(c)(i)].
Other matters related to this dismissal concerned breaches of various Council Policies [77(d)] which I have found to have occurred.
In its "termination of employment" correspondence to Mr Boorer dated 25 June 2015, Council stated that "After considering all the information submitted on this matter, I have determined that your behavior is not acceptable and:
· represents a repudiation of your employment contract;
· does not satisfy a standard of behavior expected of a Council employee;
· breaches Electrical Safety Act 2002, Council's Code of Conduct and Zero Harm Responsibilities of Workers."
I have accepted Council's decision to terminate Mr Boorer's employment as being appropriate in the circumstances.
The application is dismissed.
0
4
0